Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), entered October 22, 2010.
The opinion of the court was delivered by: Martoche, J.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2011
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ.
The order, insofar as appealed from, precluded plaintiff from presenting evidence at trial on the issue of diminished value and denied plaintiff's request for a jury charge on that issue.
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs.
On this appeal, we are presented with an issue of damages,
namely, whether a plaintiff whose personal property has allegedly increased in
value from the time of its purchase is limited to recovering the cost of repairs to
the personal property after it has been damaged or whether the plaintiff may seek
to recover the diminution in value of the property. Supreme Court agreed with
defendant that plaintiff was precluded from presenting evidence at trial on the
issue of the alleged diminished value of the property after repairs had been made
to it. That was error, and we therefore conclude that the order insofar as appealed
from should be reversed.
Plaintiff was the owner of a 2000 Ford GT (hereafter, GT). On May 28, 2005, the GT was parked on the east side of Franklin Street in the City of Buffalo. According to plaintiff, the GT "is a rare collector's sports car rapidly appreciating in value." On the day in question, Justin M. Prahler (defendant) was driving a 1997 Jeep Cherokee and had consumed several alcoholic beverages. He was legally intoxicated when he struck and damaged the GT.
Plaintiff asserted, inter alia, a cause of action for negligence per se against defendant, and it sought $52,000 in damages. Defendants' answer is not contained in the record. They subsequently sought disclosure from plaintiff, and plaintiff responded with several documents, including a letter from State Farm Insurance (State Farm) to plaintiff's counsel advising that, until the vehicle was repaired and thereafter appraised, State Farm was unable to determine if the vehicle had diminished in value. Plaintiff also included an estimate prepared by State Farm indicating that the total cost of repairs for the vehicle was $3,484.35. Plaintiff disclosed the identity of its expert ...